So businesses actually do not have the right to ban people from carrying afterall??

I have heard this before but thought it was just a position that someone who was very pro-gun had taken. It's interesting to hear this from a judge. Yes, I know who this judge is and yes, I also know that he is a frequent contributor on Fox News (has his own show, even). But it is interesting to hear his take on the issue, nevertheless.

http://www.truthbehindpolitics.com/2nd-amendment-videos/

BTW: I don't mean to stir up a hornet's nest or cause heated debate on this topic. My intent is only to show how someone in the legal profession who has held a judgeship sees the issue.

One former judge's opinion based on a particular viewpoint of "public accommodation".

There's pretty much no way you can avoid heated debate on the issue. There are three sides, none of which sees any validity to the other two. Asking folks to look at the fact that there is one person's opinion out there as a physical phenomenon, without commenting on it one way or another, is a great leap of faith that I fear will not yield the results you ask for.

As this judge is offering a generalized opinion, is not representing anyone as a client, is not serving as your attorney, and has not made any binding assurances to both go your bail and represent you in any criminal proceedings, I would urge caution in acting in reliance on his opinion.

stay safe.

It is "The Judge's" unofficial opinion that the theory of "public accommodation" extends to protecting fundamental rights against infringement by private entities whom the courts have designated "public accommodations." Current case law only supports the prohibition an banning people for membership in "protected classes."

I can't overstate how repugnant to Liberty the whole "public accommodation" idea is, even though its original intent was to stop racial discrimination. The point remains that the idea has not been used in the way The Judge implies.

The argument I would put forth to the SCOTUS were it to consider extending the "public accommodation" theory in the way The Judge proposes would be:

Does that mean that a store owner must allow a person to stand in the middle of his store and advocate for a candidate with whom the proprietor vehemently disagrees, not necessarily in a way that interferes with the business of the store, but in a way that owner would prefer not to subject the customers of his business? If the concept of "public accommodation" is extended in this way, it will.

Remember, this is the opinion of one person (a well-respected, educated, and informed person, to be sure), but not the current opinion of the law. He is essentially putting forth the argument he'd like to see made in court.

As I was the one who started this thread and I emphasize that I intended absolutely no friction or heated discussions but rather a take from a judge, I will offer my opinion on this issue.

I tend to defer to the rights of private individuals' property (businesses and otherwise), when doing just about anything (perhaps an exception or two). I was raised and taught to respect those things which people own and that respect for property naturally evolved into respecting other people. So while I see the judge's position, I would defer to the side of private property rights. Believe me, I do not wish to be the poster child for a trespassing test case while arguing there is nothing the owner can do to me.

eye95 said:

Current case law only supports the prohibition an banning people for membership in "protected classes."

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Talk about repugnant. The concept of "protected class" is not only discriminatory in the extreme, it flies in the face of everything that is American.

SouthernBoy said:

Talk about repugnant. The concept of "protected class" is not only discriminatory in the extreme, it flies in the face of everything that is American.

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I agree.

I object to the ideas of "public accommodation," "protected class," and denying service to someone based on race or national origin.

The judge has an interesting theory, but I am not at all sure it should or would hold water.

I firmly believe in my father's "My Roof, My Rules" argument.

I hold the same idea for my property.

If someone is on my property (in my livingroom, garage, or even my back yard) he is only allowed to be there with my permission, and my permission is granted only so long as that person abides by my rules.

Refuse to follow my rules and you are out.

I feel the same applies to all property, whether owned by an individual or a corporation: Their roof, their rules.

Don't like their rules, don't enter their property.

"Public accommodation" adds a slight wrinkle to that, but I still feel, bottom line, that "My Roof, My Rules" applies, even if that is the roof over my one-man business and therefore, open to the public.

It is open to the public only so long as that public follows house rules. If I insist that one must wear a blue shirt to enter, that's what one must do. Don't like it? Don't enter.

Once again, my dad was right in his very simple and direct statements.

eye95 said:

I agree.

I object to the ideas of "public accommodation," "protected class," and denying service to someone based on race or national origin.

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Also the notion of a "protected class" could be in violation of the equal protection clause.
(for the states anyway.)

Private Property Rights > My Rights

While our Government thinks otherwise, I will still recognize this principle of Natural Law.

Consider this for example:

A resident of an apartment complex invites a few friends over to grill out in a common, shared, and unreserved part of the complex, adjacent to the complex pool. According to the complex rules, the resident is allowed to keep and carry his firearm in his unit and around the complex, in accordance with local laws. He invites over three individuals who are also carrying firearms. The property is marked "no trespassing" at the front gate.

I am inclined to believe that as an invitee at a function that an authorized resident invited the general public to, that I have a right to bear arms in the defense of myself.

What say the rest of you?

Don't confuse our private property rights with the requirements with running a business.

In your home, pure private property you retain the right to exclude whomever you want. And no one will dispute that.

However when you choose to operate a business, and get a license, then you have chosen to abide by an additional set of rules. Don't like it, don't run the business, and there is no fundamental right to run a business.

Hence, run a business that is open to the public then you abide by the rules. Don't like it, change the rules or don't open shop.

Kooks come in, blacks, handicapped, kids and open carriers - serve them equally or get your doors shut.

Again, this is not simply a private property issue, but a business issue. Imagine food producers, restaurants and medical services denying access to inspectors because of property rights. Absurd.

Kirbinator said:

Consider this for example:

A resident of an apartment complex invites a few friends over to grill out in a common, shared, and unreserved part of the complex, adjacent to the complex pool. According to the complex rules, the resident is allowed to keep and carry his firearm in his unit and around the complex, in accordance with local laws. He invites over three individuals who are also carrying firearms. The property is marked "no trespassing" at the front gate.

I am inclined to believe that as an invitee at a function that an authorized resident invited the general public to, that I have a right to bear arms in the defense of myself.

What say the rest of you?

Click to expand...

Generally in apartment complexes and common areas when there is a sign posted, it is usually the case to say something along these lines;

Access to and use of this (pool/common area/club house) us limited to residents and their guests. All other persons must present themselves to the (.....) before entering.

In your example, the "No Trespassing" sign is not complete. It will probably include some sort of conditions because otherwise, almost no one could enter the property I would think. Assuming there is more information regarding trespassers and the people in question do not meet the trespassing test, the fact that it does not specify that firearms are prohibited would seem to indicate that they are allowed on the premises. That would be my take.

There was a bit of discussion a while back about apartments and whether or not they could ban firearms from residents' dwellings. I have only lived in three apartment complexes in my adult life and I don't recall any of them that banned residents from having firearms on the property... any of the property. Hard to imagine there would be any such place like that in Virginia but one never knows. I've never heard of such a restriction.

merle said:

...
However when you choose to operate a business, and get a license, then you have chosen to abide by an additional set of rules. Don't like it, don't run the business, and there is no fundamental right to run a business.

Hence, run a business that is open to the public then you abide by the rules. Don't like it, change the rules or don't open shop.
...

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Logical fallacy, appeal to common practice. Just because people have prostrated themselves for decades to the Government when deciding to start a business, doesn't make such a practice moral or effective.

I would have to agree with the Judge on this one. The Business Owner has to accept that if he opens his doors to the public he can not discriminate in any form to whom he sees fit to enter.

If the Business owner wants to make it a pricate busniess, Such as Memberships to enter, well then you have a different story!

Kirbinator said:

Consider this for example:

A resident of an apartment complex invites a few friends over to grill out in a common, shared, and unreserved part of the complex, adjacent to the complex pool. According to the complex rules, the resident is allowed to keep and carry his firearm in his unit and around the complex, in accordance with local laws. He invites over three individuals who are also carrying firearms. The property is marked "no trespassing" at the front gate.

I am inclined to believe that as an invitee at a function that an authorized resident invited the general public to, that I have a right to bear arms in the defense of myself.

What say the rest of you?

Click to expand...

What if another resident (who has just as much legal control over the property as the one inviting the public) doesn't want you to have your gun there? Who wins that argument?

What if the property owner (the actual one) or manager is okay with you having a firearm there (as seems to be the case when you consider the complex rules you mentioned)?

Publius said:

Logical fallacy, appeal to common practice. Just because people have prostrated themselves for decades to the Government when deciding to start a business, doesn't make such a practice moral or effective.

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Are the rules regarding safety issues (e.g. OSHA, USDA and FDA) an "appeal to common practice"? No. Because we have rules which dictate safety and conditions for a business - which a business owner signs up for when they obtain a license to operate.

The rules and guidelines published by the USDA are highly effective. Do not forget how meat was processed, stored and distributed before refrigerators and the understanding of bacteria and temperature.

In addition you cannot refuse access because you don't like the person or whom they work for (e.g. USDA inspectors, fire marshal, health inspector, etc)? Safety comes into play, the safety of your customer/consumer, and they do have the right to be safe and healthy.

When there are conflicts in rights, the governments role is to step in hence business rules and regulations.

Hence, certain business rules do have a purpose and are effective. This nullifies your "appeal to common practice" position. In addition, your statement of "doesn't make such a practice moral or effective" is also shown to be incorrect.

Anyhow, maybe you want to refuse access to only specific customers? Maybe you want to refuse service to specific customers? Your position has no standing without specifics as me showing one case of "effective" can negate your entire specious position.

mcdonalk said:

What if another resident (who has just as much legal control over the property as the one inviting the public) doesn't want you to have your gun there? Who wins that argument?

What if the property owner (the actual one) or manager is okay with you having a firearm there (as seems to be the case when you consider the complex rules you mentioned)?

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It doesn't matter what the other tenant/resident desires. As long as the rules allow the first resident to carry a weapon (e.g. gun, bat, sword) and/or to be there then they cannot be asked to move on.

Well, they can be asked, but they're free to refuse. Same as with a "threat" to call the cops.

When the lease is/was signed, the landlord agreed to grant access to certain aspects of the property, contractually. Because the leasee hasn't violated any part of that contract, the landlord can't do anything, not even enforce a trespass provision (you can't trespass if you've been granted permission, and according to the lease w/o restrictions based upon a firearms clause) because the leasee does have written permission to be there.

Certain leases do restrict time/place and have other covenants, and you can be 'trespassed' for violating these aspects (e.g. can't use the swimming pool after 10P).

However, the landlord (and tenant) can break the lease (always a provision in leases to break a lease w/ XXX days warning) and evict the tenant for whatever reason at a later time. This may be a/the reason, but it's always best to give no reason whatsoever.

------------
Description of Appeal to Common Practice

The Appeal to Common Practice is a fallacy with the following structure:

X is a common action.
Therefore X is correct/moral/justified/reasonable, etc.
The basic idea behind the fallacy is that the fact that most people do X is used as "evidence" to support the action or practice. It is a fallacy because the mere fact that most people do something does not make it correct, moral, justified, or reasonable.
------------

So, while a common practice could be correct/moral/justified/reasonable, etc, simply stating something has always been done so it must be correct/moral/justified/reasonable, etc, is a logically fallacious argument.

merle said:

Are the rules regarding safety issues (e.g. OSHA, USDA and FDA) an "appeal to common practice"? No. Because we have rules which dictate safety and conditions for a business - which a business owner signs up for when they obtain a license to operate.

Click to expand...

But why should anyone have to give up their rights in order to freely exchange products or services to willing buyers? Why should you be FORCED to give away your rights in order to make a living? Once again I am not saying that OSHA, USDA and FDA are not effective (they may or may not be), merely that they are immoral.

merle said:

In addition you cannot refuse access because you don't like the person or whom they work for (e.g. USDA inspectors, fire marshal, health inspector, etc)? Safety comes into play, the safety of your customer/consumer, and they do have the right to be safe and healthy.

Click to expand...

If people do not believe your business is safe then they have every right not to purchase products from you.

merle said:

Anyhow, maybe you want to refuse access to only specific customers? Maybe you want to refuse service to specific customers? Your position has no standing without specifics as me showing one case of "effective" can negate your entire specious position.

Click to expand...

I wouldn't refuse to do business with anyone who had money, but I would not want the government to force people into doing business with me if they didn't want to because of my race, religion, hair style, height, gender, the fact that I OC, et cetera. The only moral way to hurt a business for doing something you don't like is to stop buying from that business, not use a proxy to put a gun to their head and say "do as we like or else!"

Well said. You do Publius proud! Especially in the pistol proxy that is the government.

Personally, I think this judge is out of line in saying that.

I do not want a judge, lawmaker, cop or anyone else telling me what I can or cannot do with, in or on another persons private property, unless of course the matter is decided by the private property owner.

Private property rights are the only thing that should supersede the constitution during privileged times of conditional access. Costco is a great example. Your rights to carry still exist while there, but if you go, which no ones telling you to, you forfeit them while there until you leave, because going there is part of conditional and contractual access as set by the property owner.

If we the freedom driven minority manage to vastly lose sight of the fact that the founders wanted all rights to be property based, and for good reason, I hold little hope for the future generations, because it will be the final nail in the coffin of freedom when even we begin to have no issues with the government controlling private property. In falling for that nonsense, we would stand to rapidly sink into some socialist totalitarian system of big government with very few personal choices. We're close enough to there already. I strongly believe always keeping this in mind is of the utmost importance.